Director of Public Prosecutions (WA) v Mangolamara - [2007] WASC 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MANGOLAMARA [2007] WASC 71

CORAM: HASLUCK J

HEARD: 1 & 2 MARCH 2007

DELIVERED : 27 MARCH 2007

FILE NO/S: MCR 25 of 2006

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
ROBERT ANTHONY MANGOLAMARA
Respondent

Catchwords:

Criminal law - Application by DPP for order pursuant to Dangerous Sexual Offenders Act 2006 (WA) for continuing detention or supervision order - Onus on applicant to establish that respondent is a serious danger to the community - Continuing detention order not to be made if protection of community can be obtained by a supervision order - Court must take account of psychiatrists reports - Orders sought by DPP failed to specify conditions or define time period for a supervision order - Statutory safeguards in criminal proceedings of this kind oblige the DPP to make out a case to the prescribed standard and disclose the evidentiary materials bearing upon the case - Offender an Aboriginal male from remote North West - Nature of situation and circumstances to which person will be returned highly relevant - Psychiatric report based partly on screening devices as instruments of assessment - Objection to admissibility and weight of assessment tools on grounds that underlying data not properly proved - Little weight given to that part of the opinions based on assessment tools - Predicative instruments had not been developed against a background of research concerning Aboriginal people - Psychiatric assessments concerning potential for risk assessment can be taken out of their primary context which is one of treatment and intervention - Question of whether offender is a danger to the community is ultimately a question of fact to be answered by the Court utilising the ordinary rules of evidence, prescribed statutory criteria and psychiatric reports - Respondent should not be detained unless applicant has endeavoured to formulate a suitable supervision order - Failure of DPP as applicant to discharge prescribed onus of proof - Application for detention order or supervision order dismissed

Legislation:

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 17

Result:

Application dismissed

Category: A

Representation:

Counsel:

Applicant: Mr S Vandongen
Respondent: Mr R W Richardson

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Aboriginal Legal Service

Case(s) referred to in judgment(s):

Attorney‑General for the State of Queensland v Francis [2005] QSC 381
Attorney‑General for the State of Queensland v Francis [2006] QCA 324
Director of Public Prosecutions for Western Australia v Mangolamara [2006] WASC 172
Fardon v Attorney‑General for the State of Queensland (2004) 223 CLR 575
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McGarry v The Queen (2001) 207 CLR 121
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Anderson (2000) 1 VR 1
Ramsey v Watson (1961) 108 CLR 642
The State of Western Australia v AA [2006] WASC 279
The State of Western Australia v Latimer [2006] WASC 235
TSL v Secretary to the Department of Justice (2006) 14 VR 109

HASLUCK J:

The application

The Director of Public Prosecutions has made an application pursuant to provisions of the Dangerous Sexual Offenders Act 2006 (WA). It appears from the DPP's application dated 28 June 2006 that orders are sought under the Act for either a continuing detention order or a supervision order in relation to the respondent, Robert Anthony Mangolamara.
I will look at the relevant statutory provisions in more detail shortly. However, in essence, this newly enacted legislation applies to offenders who are subject to a sentence of imprisonment for serious sexual offences. If, upon the application of the Director of Public Prosecutions, such an offender is found to be a serious danger to the community, the Supreme Court may order that the offender be detained in custody for an indefinite term for control, care, or treatment (subject to provision for annual reviews) or be released in accordance with the terms of a supervision order.
By s 17(2), the paramount consideration in relation to the making of any such orders "is to be the need to ensure the adequate protection of the community."

The respondent

The respondent was born at Derby on 28 May 1980 to parents who came from a remote Aboriginal community. Following the deaths of his parents, the respondent was raised by his aunt and her husband in a family of six brothers and sisters. He attended school until Year 10 at his local community and then went to Perth for Year 11. However, after getting into trouble for fighting, he transferred to a school in Esperance where he completed Years 11 and 12. He then commenced an apprenticeship as a motor mechanic.
The respondent returned to his home community. However, at about 18 years of age he transferred to another community closer to Derby, and throughout this period was largely unemployed.
The respondent committed his first offence in 1996, when he was 15 years of age, being a single offence of indecent assault on a young nephew. I will look at the course of his subsequent offending in detail later. His last conviction occurred early in 2004 in respect of acts that occurred on unknown dates during 2002 and involved a 12‑year‑old girl. The respondent was on parole at the time and breached the parole conditions by committing two offences of sexually penetrating a child under 13 years, and two offences of attempted sexual penetration of that child.
On 20 April 2004 the respondent was sentenced for all offences in the Broome District Court and received a total of 32 months' imprisonment without parole.

Preliminary hearing

The respondent was due for release from the sentence just mentioned on 25 July 2006 as appears from the affidavit of Mary‑Anne Martin sworn 28 June 2006. It follows that the present application, dated 28 June 2006, was made shortly before the applicant was due for release.
When the matter came on for a preliminary hearing on 7 July 2006 Blaxell J was satisfied that there were reasonable grounds for believing that the Court might find that the respondent was a serious danger to the community. In arriving at that conclusion his Honour had regard to previous pre‑sentence reports and sentencing remarks. He noted that there had been three separate episodes of serious sexual offending as an adult, and all but one of those offences was committed in breach of a community based order and bail, or parole. It was a fair inference that the respondent had been unable or unwilling to restrain himself from such re‑offending.
It then became necessary for Blaxell J, pursuant to s 14(2)(a) of the Act, to appoint two psychiatrists to examine the respondent.
On 25 July 2006 orders were made for the respondent to undergo examinations by Dr Victoria Pascu and Dr Adam Brett. As to the question of the respondent's continuing custody, Blaxell J was told that the respondent's solicitors were still investigating the arrangements that could be made for his supervised release into the community pending the final hearing of the application. In these circumstances, an order was made that the respondent be detained in custody until the final hearing, but he was also granted liberty to apply at any time for a variation of that order.
The reasons for decision underlying these orders are set out in a written judgment of Blaxell J being Director of Public Prosecutions for Western Australia v Mangolamara [2006] WASC 172.

Further hearings

The matter was listed for hearing on Tuesday, 5 December 2006. On that occasion the respondent was represented by counsel instructed by the Aboriginal Legal Service, being the counsel who had appeared before Blaxell J. It emerged at the hearing that reports had only just been received from the psychiatrists in question. The report of Dr Victoria Pascu is dated 27 November 2006. The report of Dr Adam Brett is dated 4 December 2006.
It became apparent during the course of debate that counsel on both sides had not had a sufficient opportunity to digest and take instructions in respect to the matters raised in these reports. Accordingly, by consent, the hearing of the matter was adjourned to Thursday, 1 March 2007 so that these matters could be addressed.
Having regard to the reasons for decision previously given by Blaxell J, I extended the interim order made previously to that date.
The matter was brought on for hearing before me for two days commencing 1 March 2007 in the presence of the respondent. The DPP and the respondent were represented by counsel. Dr Pascu and Dr Brett gave evidence at the hearing. The DPP adduced evidence also from a Senior Community Corrections Officer employed by Community Justice Services, Michelle Myles.
Let me turn now to the scheme of the Act concerning an application for orders of the kind sought in the present case.

Scheme of the Act

The objects of the Dangerous Sexual Offenders Act are to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community (s 4(a)); and to provide for continuing control, care, or treatment of persons of a particular class (s 4(b)).
These objects, and other provisions of the Act, might suggest to an observer that the Court is being empowered to make determinations which are closer to administrative decision‑making than to its traditional function of applying existing law to past events. Queries of this kind will often be raised when legislation, rather than being of general application, appears to be ad hominem in the sense of being directed to a particular class of the community or where it might seem that determinations amount to an extension of government policy.
In that context, the High Court has held on a number of occasions that State parliaments may not legislate to confer on State Courts powers which are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth of Australia.
In resolving an issue of that kind it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested party an opportunity to be heard and to deal with any case presented by those with opposing interests: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49 per Steytler P at [81].
For these reasons, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was recently held by the High Court to be valid. It was thought that the legislation did not impair the institutional integrity of the Supreme Court in Queensland in such a fashion as to be incompatible with the Court's constitutional position as a potential repository of federal judicial power: Fardon v Attorney‑General for the State of Queensland (2004) 223 CLR 575.
I note in passing that there was a profound difference of opinion in Fardon's case as to whether legislation of this kind should be characterised as a protective rather than a punitive enactment. I will come back to this and related issues in due course.
Section 17(1) of the Dangerous Sexual Offenders Act in this State provides that if the Court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the Court may either order that the offender be detained in custody for an indefinite term for control, care, or treatment, or order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the Court considers appropriate and states in the order.
Section 17(2) provides that in deciding whether to make a detention order or a supervision order the paramount consideration is to be the need to ensure adequate protection of the community. However, before any order can be made the Court must find that "the offender is a serious danger to the community."
The crucial concept is governed by s 7 of the Act which reads as follows:
"7.     Serious danger to the community
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a)     by acceptable and cogent evidence; and
(b)     to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b)any other medical, psychiatric, psychological, or other assessment relating to the person;
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d)whether or not there is any pattern of offending behaviour on the part of the person;
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g)the person's antecedents and criminal record;
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i)the need to protect members of the community from that risk; and
(j)     any other relevant matter."
Section 3 of the Act states that "serious sexual offence" has the meaning given to that term in s 106A of the Evidence Act 1906 (WA); that is, essentially, it must be one of the prescribed offences for which the maximum penalty is a term of imprisonment of 7 or more years.
Section 8(4) of the Dangerous Sexual Offenders Act provides that the application filed with the Court must state the orders sought and be accompanied by any affidavit to be relied on by the DPP.

Overview

It emerges, then, from a review of the statutory provisions, that the Court must be satisfied by the DPP, by acceptable and cogent evidence, to a high degree of probability, that, if the offender were not subject to a continuing detention order or a supervision order, there is an unacceptable risk that the person would commit a serious sexual offence.
Further, the Court must take account of certain prescribed matters including reports prepared by psychiatrists pursuant to the statutory process.
All of this seems to assume, being a matter that I will come back to later, that the Court has or will be provided with information as to the nature of the situation and circumstances to which the person will be returned.
Justice Murray observed in The State of Western Australia v Latimer [2006] WASC 235 at [13] that the requirement is that the Court must be satisfied by acceptable and cogent evidence to a high degree of probability (but not beyond reasonable doubt) that there is "an unacceptable risk" of the commission of a serious sexual offence unless the offender is subjected to a continuing detention order or a supervision order.
His Honour went on to observe at [16] that, in his view, in the context of this legislation where the question is the degree of risk of the commission of a serious sexual offence if the offender is not subject to a continuing detention order or supervision order, the risk would be found to be unacceptable if it was a real risk of substance, not merely a remote possibility.
However, he said also at [19], that at least so far as the Court is asked to make a continuing detention order, this is clearly an extraordinary power and the legislation recognises that the powers conferred by the Act are only to be used in a clear case by requiring the Court to be satisfied about the threshold question (that is, the existence of a serious danger to the community) by cogent evidence and to a high degree of probability.
He said further at [22] that, in his opinion, the Court would not make a continuing detention order if an adequate degree of protection of the community might be obtained by making a supervision order having regard to the terms of such an order as described by s 18 of the Act.
By s 17(1)(b) of the Act a supervision order must be for a defined period. His Honour noted, by way of contrast, that a continuing detention order is for an indefinite term. However, Pt 3 of the Act contains provisions for annual reviews of the detention of a person subject to a continuing detention order. After the first year, the review process may be initiated, not only by an application by the DPP, but also by the prisoner.
By s 40 of the Act proceedings of this kind are to be taken to be criminal proceedings for all purposes. In Latimer's case Murray J noted that under s 42 the Court is required to admit evidence called by the DPP and by the offender under the ordinary rules of evidence, except that the Court is empowered to receive in evidence a document relating to a person's antecedents or criminal record, the transcript of any proceeding against a person for any serious sexual offence, and any medical, psychiatric, psychological or other report tendered in such a proceeding.
His Honour observed further that it was clear that the psychiatric reports prepared under s 37 of the Act could be admitted in evidence, at least if the psychiatrist was called to give evidence in the ordinary way. Significantly, s 14(2)(a) of the Act refers to the preparation of psychiatric reports "to be used on the hearing of the application".
However, it is important to understand that such reports must not be treated as decisive. In TSL v Secretary to the Department of Justice (2006) 14 VR 109 Callaway JA made these observations at [40] to [42]:
"[40]… In the end what is required is an assessment by the judge of the likelihood of the person's re‑offending. Sentencing judges perform that task, admittedly with less assistance, every day, when they decide what weight to give to the protection of the community or to specific deterrence or assess a prisoner's prospects of rehabilitation.
[41]Making appropriate adjustments, for instance acknowledging that assessment reports are clearly admissible and their makers may be cross‑examined, because the Act says so, and that the burden of deciding what to do with high risk offenders has been delegated by the community to the courts, the approach in [39] ‑ [40] above derives support from the following passage in the issues paper recently prepared by Professor Bernadette McSherry on behalf of the Sentencing Advisory Council.
'Preventive detention schemes rely on assessments of risk. While mental health professionals who give evidence in court about offenders' risk are often cross‑examined, there is some question about whether such evidence should be admitted at all. These assessments of risk tend to be taken out of their primary context, which is one of treatment and intervention. There is also the potential for judges and juries to misunderstand and misuse risk assessments, assigning greater accuracy and inevitability to predicted behaviours than is warranted …
As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear within the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than within the criminal justice model of punishment and community protection. (footnotes omitted)'
I refer also to what Kirby J said in his dissenting judgment in Fardon v Attorney‑General (Qld) about the unreliability of predictions of criminal dangerousness and the tendency of mental health professionals, who are primarily concerned with treatment and intervention, to overpredict recidivism.
[42]It is for those reasons that Parliament has conferred the responsibility for deciding whether or not to make an extended supervision order on judges experienced in sentencing, assisted but not constrained by assessment reports and medical evidence."

General observations

It emerges from discussion to this point that, in construing the Dangerous Sexual Offenders Act 2006 (WA), careful consideration must be given to the nature of the power vested in the Supreme Court to make orders of the kind applied for in the present case.
Initially, as appears from the application before me dated 28 June 2006 the orders sought were as follows:
"Orders under section 14 and section 17(1) of the Dangerous Sexual Offenders Act 2006 in relation to the respondent, pursuant to section 8 of the Dangerous Sexual Offenders Act 2006."
However, at the hearing of the DPP's application, a minute of proposed orders dated 1 March 2007 was submitted to the Court in these terms:
"1.The respondent be detained in custody for an indefinite term for control, care or treatment.
2.Alternatively, when the respondent is not in custody and at all times during a period to be fixed and stated in the order, the respondent be subject to conditions that the Court considers appropriate and stated in the order."
I note in passing that, as to par 2 of the 1 March minute of proposed orders, counsel for the DPP did not contend for a specific set of conditions that were thought to be appropriate and did not nominate a defined period for a supervision order.
The assumption underlying the applicant's case seemed to be that it was for the respondent to make out a case as to why a supervision order might be more suitable than a detention order, in much the same way as a prisoner applying for parole might refer to matters suggesting that parole should be granted. I will look at the evidence and submissions bearing upon this aspect of the matter in due course. However, for the time being, I am prompted by the nature of the orders sought to make some general observations about the nature of the legislation and the power to be exercised by the Court.
In earlier discussion, I referred to Fardon's case. In that case, the High Court was principally concerned with constitutional issues and the validity of the Queensland legislation. However, not surprisingly, the various judgments contain observations which are of use in determining how the legislation in question is to be construed.
In a powerful dissenting judgment, Kirby J observed, at [163], that, in our system of criminal justice, prisons are a place of punishment for past wrongdoing. This is an aspect of the essential character of the judicial function which involves the application of the law to past events or conduct. Imprisonment is not used as punishment in advance for crimes feared, anticipated or predicted in the future.
His Honour was of the view that simply calling the imprisonment by a different name (detention) does not alter its true character or punitive effect. Essentially, the legislation allowed a second Court to review and increase the punishment previously imposed by the first Court for precisely the same conduct. This retrospective application of law was repugnant to the judicial function, with the result that the legislation should be held invalid.
A majority on the High Court took a different view. In essence, the validity of the Queensland Act was upheld by the majority because the powers allowed to the Supreme Court were thought to be compatible with conventional judicial functions for various reasons.
Gleeson CJ observed, at [2], that if it is lawful and appropriate for a Judge to make an assessment of danger to the community at the time of sentencing, perhaps many years before an offender is due to be released into the community, it may be thought curious that it is inappropriate for a Judge to make such an assessment at or near the time of imminent release, when the danger might be assessed more accurately.
Callinan and Heydon JJ made these observations, at [217]:
"In our opinion, the Act, as the respondent submits, is intended to protect the community from predatory sexual offenders. It is a protective law authorizing involuntary detention in the interests of public safety. Its proper characterization is as a protective rather than a punitive enactment. It is not unique in this respect. Other categories of non‑punitive, involuntary detention include: by reason of mental infirmity; public safety concerning chemical, biological and radiological emergencies; migration; indefinite sentencing; contagious diseases and drug treatment. This is not to say however that this Court should not be vigilant in ensuring that the occasions for non‑punitive detention are not abused or extended for illegitimate purposes."
All of the judgments reflect an awareness that substantial questions of civil liberty arise in regard to legislation of this kind. An order akin to an indefinite sentence arguably goes beyond punishing the offender to an extent proportionate to the crime of which the offender has been committed. There is a risk that a measure designed to ensure the better protection of society could become an instrument to weaken the basic principle of individual liberty.
However, it is important to understand, as Gummow J observed in Fardon's case, at [74], that the legislation operates by reference to the offender's status, derived from his previous conviction. This establishes a connection between the operation of the Act and anterior conviction by the usual judicial processes, with the result that the institutional integrity of the Supreme Court is not threatened.
Justice McHugh noted that if the Court found that the Attorney‑General had satisfied the standard prescribed by the legislation (that is, that there was an unacceptable risk that the prisoner would commit a serious sexual offence), the Court had a discretion as to whether it should make an order under the Act and, if so, what kind of order. His Honour observed that the Court was not required or expected to make an order for continued detention in custody. The Court had three discretionary choices open to it if it found that the Attorney‑General had satisfied the "unacceptable risk" standard. It may make a continuing detention order, a supervision order, or no order. He said that the Attorney‑General bears the onus of proof.
The High Court has made it clear in a number of cases concerning indefinite imprisonment that the procedures to be observed should be regular and scrupulously thorough and that the materials, including the pre‑sentence reports, should be as adequate and as complete as fairness to the prisoner required.
An issue of this kind was under consideration in McGarry v The Queen (2001) 207 CLR 121. In that case, it was held that a decision to apply for an order for indefinite imprisonment should be founded on sufficient material. If reliance was placed on the offender's past conduct, full details of that conduct, including all of the evidence that related to it, should be available to the sentencing Judge and the offender should have a proper opportunity to meet the prosecution case.
Justice Kirby observed at [61], that the reason why the system of criminal justice treats an order of indefinite imprisonment as a serious and extraordinary step, derives from the respect which the law accords to individual liberty and the need for very clear authority, both of law and of fact, to deprive a person of liberty, particularly indefinitely. In part, this approach rests upon the indisputable feature of almost all criminal sentencing in Australia that limits the sentence imposed to one that is proportionate to the offence of which the person has been convicted. In part, it reflects a tendency to recoil from preventive detention that involves punishing a person not for something that he has done, but because of something it is feared he might do. In part, it represents a realistic acknowledgement of the limitations experienced by judicial officers, parole officers and everyone else in predicting dangerousness accurately and estimating what people will do in the future.
His Honour said, further, at [62], that such punishment should not be ordered except after the observance of fair procedures and upon the basis of materials that are appropriate, both in kind and quantity, to the exceptional character of the order that is sought.
Observations of this kind were reflected in the reasoning of Mackenzie J in Attorney‑General for the State of Queensland v Francis [2005] QSC 381. That was a case in which the Attorney‑General had applied for review of a continuing detention order made pursuant to provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). A detention order had been made on the assumption that a plan would be devised for the graduated release of the prisoner over 12 months, but the plan had not eventuated.
Justice Mackenzie made these observations, at [33]:
"It cannot be lost sight of that the Act is concerned with preventative detention after the prisoner would otherwise have been released by effluxion of his finite sentence. Undue protraction of incarceration of the person because administrative procedures either do not exist to enable him to rehabilitate sufficiently to be released, or to prove that the actual risk in his case is not unacceptable, or because the administrative procedures unduly delay such rehabilitation or proof, is hard to convincingly justify. The Act is, after all, intended by its terms to allow continued detention only for as long as the unacceptable risk to the community clearly exists. It is not intended to lock up people and throw away the key if they may have prospects of rehabilitation to an extent where they can be released, given the opportunity, but are denied that opportunity due to administrative or procedural inadequacies."
In the end, having regard to various complexities, his Honour held that the detention order made previously should be continued. However, he concluded his judgment with observations to the effect, at [137], that if the department provides no means of effectively staging release of this category of prisoner back into the community, it may be that decisions about whether to further deprive a person of liberty, beyond the term of imprisonment imposed when the person is originally sentenced, would have to take that into account. He said that such an approach was not inconsistent with the concept raised by Gummow J in Fardon's case, at [113]; that is, that the provisions of the Act might permit refusal by the Court of an order for further detention, by reason of failure by the appropriate authorities to implement an earlier order.
In Attorney‑General for the State of Queensland v Francis [2006] QCA 324, an appeal against the decision of Mackenzie J was allowed by the Court of Appeal. It was held that the reasoning of Mackenzie J revealed an error of law in his approach to the question of whether the protection of the community could adequately be ensured by an order for supervised release. However, in the course of its judgment, the Court of Appeal made these observations, at [31]:
"It is possible, too, that the view taken by Gummow J in Fardon v Attorney-General for Queensland supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive. The character of the detention authorised by the Act is, as was explained in the reasons of the High Court in Fardon v Attorney-General for Queensland, not punitive but preventive."

Further observations

It emerges from a consideration of the reasoning in these cases that, in construing the Dangerous Sexual Offenders Act in this State, one must be conscious that a power of an extraordinary nature is under consideration in that a person will generally not be deprived of his or her liberty unless the operative power is clearly expressed. It is clear from various statutory provisions that safeguards of the kind generally to be found in the course of criminal proceedings must be observed. These safeguards include the obligation upon the DPP, as the party applying for orders which may lead to a deprivation of liberty, to make out a case in accordance with a prescribed standard and to disclose the evidentiary materials bearing upon the case in question.
To my mind, all of this suggests that, in applying for a detention order, the DPP, as applicant, must not only convince the Court that there is an unacceptable risk of re‑offending but also, where a detention order is being sought, endeavour to negate or rule out any suggestion that the community would be sufficiently protected by the making of a supervision order.
In other words, the Court must be satisfied by the DPP that if the person named in the application is released without being subject to a supervision order, there is an unacceptable risk that the person would commit a serious sexual offence. This seems to require that the Court has, or will be provided with, information as to the nature of the situation and circumstances to which the person will be returned.
It emerges, then, in summary, that an application made by the DPP pursuant to s 17 of the Act gives rise to a two‑stage process in the determination of the application: The State of Western Australia v AA [2006] WASC 279 per Murray J at [6].
First, the Court must find that the offender is a serious danger to the community in that there is an unacceptable risk that if he were not subject to a detention order or supervision order he would commit a serious sexual offence. The consequence of two forms of order being allowed for is that, in assessing the risk, the Court must give always consideration to the question of whether a supervision order will be sufficient to remove the risk to the community or to reduce it to a level that is not "unacceptable". This means, in practical terms, that the DPP must establish by acceptable and cogent evidence to a high degree of probability that if the offender is released, without any order being made, there is a real risk of substance that he will commit a serious sexual offence.
The statutory provisions and decided cases indicate that in the end the question of whether the offender is a danger to the community in the relevant sense is a question of fact to be answered by the Court in accordance with the ordinary rules of evidence (as qualified by the Act) and the prescribed legal criteria. The Court must have regard to the s 37 psychiatrist reports, but it follows from the observations I have just made that the opinions contained in these reports are not to be treated as decisive. It is for the Court to make the final assessment.
The decided cases indicate also that owing to the exceptional gravity of the orders sought, which may have the effect of depriving a person of his liberty, the evidence must be sufficient to meet the required standard of proof and the prescribed procedures must be rigorously observed. If at the first stage of the process the Court is not satisfied by the materials and submissions before it that the offender is a serious danger to the community then the Court does not have power to make any order. If no order is made then an offender who has served his term of imprisonment is to be released.
Second, if it be found that the offender is a serious danger to the community, then the Court may make an indefinite detention order or a supervision order for a defined period, containing the conditions enumerated in s 18 of the Act.
As to that part of the Act, Murray J observed in Latimer's case at [21] ‑ [22] that the use of the word "may" in this context does not import the exercise of a discretion to make such an order in either form or to make no order at all in respect of a person found to be a serious danger to the community. The word "may" confers the power on the Court to make one or other order described by the section. By s 17(2), in deciding between the two, the paramount consideration is to be the need to ensure adequate protection of the community.
The scheme of the Act, and the observations made by Murray J in Latimer's case, suggest that the Court would not make a continuing detention order if an adequate degree of protection to the community might be obtained by making a supervision order. However, it follows from discussion to this point that there is a difficult question to be resolved as to how the Court should proceed if the evidentiary materials are found to be inadequate. If at the first stage of the process the Court has simply not been satisfied in the relevant sense that the respondent is a serious danger to the community, it seems that the Court does not have power to make any order.
With these thoughts in mind, I must now return to the circumstances of the present case.

The respondent's record

It will be useful to begin by saying more about the respondent's prior record. As I have indicated, the respondent committed his first offence in 1996 when he was 15 years of age. It was a single offence of indecent assault committed on his nephew who was about 5 years of age. It seems that the respondent's immaturity was thought to be relevant because the Kununurra Childrens' Court referred the respondent to a Juvenile Justice Team.
When the respondent was 18 years of age he committed offences of aggravated burglary and indecent assault. The victim was a 27‑year‑old woman who was not well known to him. I understand that, on 27 October 1999, at about 4.30 am, the respondent jumped a back fence and went inside the woman's house and entered her bedroom. While she was asleep he fondled her breasts and vagina but then fled when she woke up and started shouting. The respondent was dealt with leniently and placed upon a 12 months' Community Based Order (as from 21 February 2000).
Only about one month after the Community Based Order was imposed, that is, in March 2000, the respondent committed two offences of assault occasioning bodily harm, and one offence of deprivation of liberty. These offences were all committed on a girl aged 13 years and involved him grabbing hold of her and punching her twice in the face. The respondent was drunk at the time and his motivation in committing the offences is unclear. On 19 March 2000 the respondent was charged with those three offences and released to bail.
Then, on 23 March 2000, being only four days after the date on which he was released on bail, the respondent committed an offence of sexual penetration without consent. It seems that he was at a party at a house in Derby where the 28‑year‑old female complainant was asleep in a bedroom. The respondent entered the bedroom, removed her clothing while she slept, and penetrated her vagina with his penis. The complainant woke up to find the respondent lying on top of her. Both the respondent and the victim were drunk at the time. The respondent appeared in the District Court in Broome on 6 June 2000 and pleaded guilty to all four offences. He was sentenced to terms of imprisonment amounting to 4 years 6 months and was made eligible for parole.
The respondent was assessed as being suitable for the Sex Offenders' Treatment Programme and during the last three months of 2000 he participated in a programme designed to address issues specific to Aboriginal culture and which included a substance abuse component. However, the evidentiary materials before me suggest that his level of participation was "minimal" and he showed little victim empathy. Upon completing the programme he continued to have several unresolved treatment issues and he was assessed as being at high risk of re‑offending.

One year later the respondent was assessed with a view to his suitability for release on parole. His community was willing to give him a chance and thus, on 25 March 2002, he was released to parole subject to a number of conditions. However, as it happened, the respondent breached the conditions by committing two offences of sexually penetrating a child under 13 years, and two offences of attempted sexual penetration of the 12‑year‑old child in question. As I have indicated, on 20 April 2004 the respondent was sentenced for all offences in the Broome District Court and received a total of 32 months' imprisonment without parole. Upon re‑entering the prison system he declined to participate in an Indigenous Sex Offenders' Programme explaining that he preferred to just do his time. He later changed his mind, but was considered unsuitable for the programme because his only motivation was to achieve a minimum security rating.
It emerges, then, that the respondent has been involved as an adult in three separate episodes of serious sexual offending (that is, in October 1999, in March 2000 and in 2002). All but one of those offences committed as an adult was in breach of either a community based order or parole. On two occasions the victims of these offences included females of about 12 years of age, but the presence of mature female victims make it difficult to define a clear pattern of offending.
Let me now turn to the first of the two reports ordered pursuant to the prescribed statutory process of assessment, being the report of Dr Pascu.

Dr Pascu's report

Dr Pascu's psychiatric report dated 27 November 2006 confirmed that the report was prepared pursuant to s 37 of the Act with a view to addressing specific issues regarding the respondent's risk of re‑offending and with recommendations regarding risk management. She described the sources of information underlying the report. This included interviewing the respondent for three hours at Hakea Prison on 18 November 2006 and access to various reports and assessments prepared previously.
The principal documents mentioned in the report were received in evidence as exhibits at the hearing before me. Thus, I had before me the affidavit of Mary‑Anne Martin to which was exhibited the sentencing remarks of his Honour Judge Williams on 6 June 2000 and 20 April 2004 and the respondent's prior record (Exhibit 5), the affidavit of Simon Formby to which was exhibited certain additional sentencing remarks and pre‑sentence reports (Exhibit 6), a file note of Michelle D'Orazio dated 24 November 2005 containing an assessment of the respondent for Indigenous Sex Offender Medium Programme suitability on 24 November 2005 (Exhibit 7), the report of Cheri Yaru‑Kama‑Harathunian dated 29 January 2002 which was described as a Parole Board Aboriginal Cultural Special Report (Exhibit 8) and the report of Julie Anne Davies dated 6 February 2001 which was described as a Treatment Completion Report (Exhibit 9).
Dr Pascu's report provided an account of the respondent's Court history in respect of sexual offences (being the offences mentioned earlier) including reference to the circumstances of each offence. Dr Pascu observed that the respondent had no history of contact with psychiatric services and has not received any treatment in prison or in the community for any mental health problem. There was no history of mental illness in his family of origin. However, there was a history of alcohol abuse in various family members. The respondent admitted to alcohol and cannabis use from the age of 16. He had never attempted a drug and alcohol rehabilitation programme as he did not perceive his use as problematic.
The report referred to matters bearing upon his personal and sexual history and it was said that he was co‑operative with the lengthy interview. He gave good eye contact and a reasonable rapport was established with the author of the report.
Dr Pascu expressed the view at page 7 of the report that the respondent was a young Aboriginal man with probably average intelligence who had no evidence of a mental illness but had an immature attitude towards the opposite sex. He came from a background in which interpersonal violence was common and appeared to be largely tolerated. According to the author of the report: "there is evidence of some cognitive distortions which further contribute to Mr Mangolamara's deviant sexual behaviours". The author was of the view that these cognitions contributed to the high risk of the respondent's sexual re‑offending.
Dr Pascu said that the respondent superficially accepted some responsibility but he was thought to have no self‑awareness into the stages leading up to the offending and showed no ability to recognise and intervene before the offending occurred. It was said that he had "minimally participated in a sex offender treatment programme prior to his parole in 2001" but it was evident that he did not gain anything during the programme as he re‑offended in a sexual manner while on parole. The author said further that during his recent imprisonment the respondent was offered twice (in 2004 and in 2005) assessment for sex offender treatment programmes but he declined on both occasions. It was said that he was keen to participate in any treatment offered to him, but this was out of a sense of desperation due to his current circumstances.
Dr Pascu said at page 8 of her report that the respondent did not suffer from a major psychiatric disorder which may explain his offending. In her view, he has an anti‑social personality disorder and a history of poly‑substance abuse (mainly cannabis and alcohol) which is thought to contribute to his offending behaviour. He presents with features of an anti‑social personality characterised by a pervasive pattern of disregard for and violation of the rights of others from a young age, with failure to conform to social norms, deceitfulness as indicated by conning others for personal gain, impulsivity, irritability and aggressiveness and lack of remorse.
The author observed that the respondent's plans, if he were to receive a supervision order, was to live with an aunt in Kununurra. It was said that she lives with her family, including teenage nieces and nephews. He described his aunt's house as alcohol and drug free. He plans to work with his uncle and as far as the supervision is concerned he said that he needed to report every day or more. When asked about his participation in a sex offender treatment programme and alcohol and drug rehabilitation he said he would do "anything to get out".
Dr Pascu said that in assessing the respondent's risk of re‑offending she used a structured clinical interview and used all the information mentioned earlier. She said that considering the historical factors, including prior convictions of a sexual nature and the characteristics of his offending, in her view, the respondent was at high risk of re‑offending. She said that his offending behaviour appears to have been both impulsive and planned. She went on to say this (at page 9):
"This is a man who had some participation in a treatment programme and has demonstrated no ability to manage his deviant sexual interests and behaviour towards vulnerable victims. Furthermore, during his current imprisonment Mr Mangolamara has been assessed on two occasions (June 2004 and November 2004) for the Indigenous Sex Offender Programme in Greenough Prison, however, on both occasions he has expressed his preference to 'do my full time' without engaging in treatment for either sexual offending or his substance abuse."
Dr Pascu then went on to say that as part of her assessment she also completed an internationally recognised risk scale for sex offenders known as Static‑99. She described this as an "actuarial risk assessment tool" which is intended to be a measure of long term risk potential. She said further that as part of the Structured Professional Judgment ("SPJ") assessment, she completed the Sexual Violence Risk‑20 ("SVR‑20") which is a twenty item tool with three categories including both static and dynamic factors. She also completed the Risk For Sexual Violence Protocol ("RSVP") which is an extended, newer version of the SVR‑20.
Dr Pascu then observed that in the respondent's case by using the structured clinical interview, combined with the structured professional judgement, the Static‑99 and all the collateral information available to her, she believed that the respondent was "at high risk of re‑offending for sexual offences".
I pause here to note that counsel for the respondent objected to the admissibility of these so‑called instruments of assessment (that is, the Static‑99 and the SVR‑20/RSVP items). I will describe the grounds of the objection more exactly and deal with the "instruments of assessment issue" later. However, in essence, the ground of objection was that the underlying data required to understand the application of the instruments of assessment had not been properly proved. For the time being, for the sake of an orderly narrative, I will continue to describe the contents of Dr Pascu's report, but without further reference to the instruments of assessment. I note in passing that according to Dr Pascu, the instruments of assessment were essentially "screening devices" to be used as checks.
Dr Pascu said that her opinion was arrived at pursuant to the structured clinical interview process. She said that in concluding that the respondent was at high risk of "re‑offending for sexual offences" the key factors were his prior convictions for sexual offending; his failure to successfully complete a sex offender treatment programme; a behavioural history which at times was premeditated; the characteristics of his offending which included violence and displayed a lack of self‑awareness for others (although he did not appear to use physical or psychological coercion in the form of "grooming"); psychological adjustments in that he tended to minimise and rationalise his behaviour; underlying disorders which did not amount to major mental disorders but did reveal a degree of sexual deviance as highlighted in his choice of victims; social adjustments in that he had difficulty maintaining intimate relations with women and problems with the manageability of these issues.
At the end of her report Dr Pascu arrived at these conclusions:
"Having considered all the information I believe that Mr Mangolamara's risk of sexual re‑offending is high. His offending is not secondary to a major psychiatric disorder but is a consequence of his higher than average sexual drive, antisocial personality and polysubstance abuse. Factors in Mr Mangolamara's case such as his minimisation, his antisocial, immature personality style and his unaddressed offending behaviour, are all indicators of him being in the high risk range of sexual re‑offending.
For the reasons detailed above, Mr Mangolamara is considered to be a high risk of committing a serious sexual offence if not subjected to a continuing detention or supervision order. The essence of his level of risk lies in his minimisation and therefore unaddressed offending behaviour, his increased sexual drive, his fairly unrealistic forward planning, the very limited supports or structure in the community and his substance abuse. No therapeutic endeavours or supervision measures to date have been of benefit, however, a combination of group and individual counselling and a trial of antiandrogen medication may have some impact on the level of risk to the community."
I note in passing that in this summary Dr Pascu does not go so far as to assert that the risk of the respondent committing a serious sexual offence can only be dealt with by the making of a detention order because a supervision order would not be sufficient to remove the risk in question or to reduce it to something less than an "unacceptable risk". Her observations seem to allow for the possibility of a supervision order being made, with provision for counselling and medication, but the appropriate terms and conditions are not spelt out.
I will have more to say about this aspect of the matter. However, at a first glance, conclusions of this kind do not appear to sit comfortably with the observations of Murray J in Latimer's case (supra) at [22] that the Court would not be inclined to make a continuing detention order if an adequate degree of protection of the community might be obtained by the making of a supervision order.

Cross‑examination of Dr Pascu

Under cross‑examination by counsel for the respondent, Dr Pascu confirmed that she had seen the respondent on one occasion only (that is, on 18 November 2006) being with him for a period of three hours. She confirmed that he was co‑operative during the course of that encounter.
She was referred to a passage in her report at page 9 in which she spoke of being aware that the Court would appreciate being provided with some degree of certainty in respect of the respondent's likelihood to re‑offend in the future. She had said that this would not be an easy task as it was well‑known that the risk of re‑offending is influenced by factors, some difficult to predict or control. She had noted also that risk assessments for "a more remote future" have a poor predicative ability. She asserted under cross‑examination that her reference to the "remote future" was a reference to a period beyond about five years.
Dr Pascu was pressed by counsel as to the reliability of her so‑called predicative tools or instruments. She agreed that the capacity of clinicians to predict violence for sexual offences was controversial. She acknowledged that the data underlying these predicative instruments had not been developed against a background of research concerning Aboriginal people, although some of the Canadian studies and research materials did extend to indigenous peoples in that country. She regarded the tools as a check upon her assessment of risk.
Dr Pascu was referred to the last paragraph of her report in which she appeared to contemplate that a combination of group and individual counselling and a trial of anti‑androgen medication might have some impact on the level of risk. She agreed that she was not of the view that nothing could be done for the respondent. She confirmed that he might be assisted by a programme of anti‑libidinal injections or tablets which might be helpful in reducing his libido or sex drive. However, this would require an informed consent by the respondent and such a course of treatment could have side effects. She had mentioned this to the respondent and he seemed to be open to it. Anti‑depressant medicines could also be used to reduce libido or sex drive. Psychological intervention in the form of cognitive behaviour therapy could also be considered because, in the respondent's case, as with various sex offenders, there were underlying causes. The therapy would be directed to having the offender empathise with the victim.
Dr Pascu said it was also necessary in addressing his situation to endeavour to overcome external factors such as alcohol and drugs. It was important for an offender to have an awareness which permitted him to deal with cognitive distortions and adverse influences such as alcohol and drugs. It was a positive sign that the respondent had admitted he had a problem with alcohol and drugs. She acknowledged that she had not been to Kalumburu.
Under cross‑examination Dr Pascu was not prepared to say that the respondent had no chance of addressing his problems. It followed from what she had said about medical treatment and counselling directed to improving self‑awareness, that there were some prospects of improvement in his case.
Dr Pascu said that she was aware the Court would make use of her assessment. She understood that pursuant to an indefinite detention order the respondent would stay in custody subject to periodical review. She agreed that her assessment was directed to the risk of re‑offending if he were not in custody. She conceded that her report did not directly address the risk of further re‑offending if he were subject to a supervision order. She acknowledged that supervision might have some impact in reducing the level of risk.
Dr Pascu said that she was aware that conditions could be attached to a supervision order but did not see it as part of her expertise or function to frame appropriate conditions, and she had not attempted to do so in the present case. She agreed that she had endeavoured to assess the risk of re‑offending but there was no definition in her report of what constituted a serious sexual offence. She agreed that the considerations mentioned in s 18 of the Act concerning conditions attached to a supervision order were not addressed in her report.
Dr Pascu agreed that the respondent's capacity and prospects of holding down a job could be relevant to an assessment of risk. It was also relevant to know where he would be situated. However, as to both matters the report could not be expanded because the respondent had not been able to provide a range of information about such matters. Indeed, he had not been able to tell her the name of his aunty, being the person with whom he might be accommodated.
Cross‑examining counsel referred to a passage at page 12 of Dr Pascu's report under the heading "Manageability" in which it was said that the respondent's lack of feasible plans, treatment and supervision failures were "highly relevant for his future risk of re‑offending as he shows no willingness to address his issues which contribute to the offending cycle".
It was put to the author of the report that the respondent commenced a substance abuse programme and was a participant in other programmes. However, Dr Pascu stood by the passage in her report at page 12 and, in doing so, referred to the fact that the respondent had failed to complete programmes he had entered. She referred also to a related passage in her report which suggested that his motivation to participate in programmes might be related to the sense of desperation about further imprisonment.
Dr Pascu acknowledged that he did not fulfil the criteria of being a paedophile, and there had been no repetition of the first phase of his offending which involved a 4 to 5‑year‑old nephew. When pressed, she agreed that his psychological problems were relatively minor. She agreed that the underlying issues influencing his behaviour could be treated in or out of prison. She agreed that he could be treated for such issues if released into the community and if a supportive family situation and infrastructure was in existence.
Dr Pascu said that if the respondent were to be released on supervision it would be important to establish where he would go. He would need to be in a stable environment and with minimal access to potential victims. It should be a place where social agencies and family support services were available to help him with medical treatment and drug and alcohol counselling. Part of the counselling should be directed to how he was to deal with conflict in his relationships. She believed he would be a good candidate for anti‑libidinal treatment.
In the course of cross‑examination, this exchange occurred (T 62):
"Did you have a look in the Act to see what orders could be made for Mr Mangolamara's supervision in the community?---I understand that there is a possibility of a continuing detention order or a supervision order.
No, did you have a look in the Act to see what orders the court could make for supervision, if he left, if he went into the community?---I did look through that, but I didn't look into huge detail as it is not something that I would have a lot of expertise in ensuring that supervision in the community."
Counsel for the applicant returned to this issue at the commencement of his re‑examination. This exchange occurred (T 87):
"You don't rule out a supervision order?---No, I don't see it as my role, no.
But do you understand that there is a choice between a detention order and supervision order?---Yes.
Assuming certain things are found, you don't rule out either option?---No.
You have told his Honour about some of the conditions or things that should be attached to a supervision order, and at one stage you talked about where he was going to go as being very important?---Yes."

Put shortly, Dr Pascu was not minded to rule out a supervision order provided stable accommodation was available. It would be preferable for the respondent not to be at Kalumburu but close to mental health clinics or services.
In answer to a question from the Bench Dr Pascu said that the conclusions expressed in her report were based on the assumption that upon release the respondent would return to a chaotic social situation of a kind that he had been living in at the time his previous offences were committed. This might not have been spelt out in her report expressly, but it was in regard to a situation of that kind that she considered that there was a high risk of the respondent committing a serious sexual offence if not subjected to a continuing detention or supervision order.

The report of Dr Adam Brett

The report of Dr Adam Brett dated 4 December 2006 was presented to the Court. He is a consulting forensic psychiatrist. His report purported to address the assessment of the level of risk that the respondent would be to the community if he were not subject to a continuing detention order or supervision order. It appears from the report that Dr Brett's sources of information included a clinical examination of the respondent on two occasions at the Hakea Remand Centre on 26 October 2006 and again on 30 November 2006. He had access also to the material documented in a letter from the Director of Legal Services at the DPP's office dated 14 August 2006 and liaison with North West Mental Health Services. The material in the Bates' letter included the reports utilised by Dr Pascu in her report.
Dr Brett described the respondent's personal history and noted that there was no evidence of previous mental health illness. The respondent acknowledged that alcohol and substances were a significant risk factor for him re‑offending. The respondent referred to his family and sexual history and in doing so was said by Dr Brett to have been co‑operative.
Dr Brett said that there was no evidence of psychotic phenomena or pervasive affective symptoms. The respondent's cognition was grossly intact and he had a reasonable insight into his situation. Dr Brett said at page 3 of his report that "this risk assessment is based on the STATIC‑99 and the Risk for Sexual Violence Protocol. Neither of these tools have been validated within the Indigenous Australian population, however clinically they make the most sense to be used".
As to the risk for sexual violence protocol, Dr Brett addressed various risk factors laid out in the protocol which are associated with an increased risk of offending. It was said that the respondent had a history of chronic sexual violence, he had offended in a diverse manner with regard to victim characteristics including age and sex, his offending pattern had escalated, there had been some physical coercion in the offences, he did not attempt to minimise or deny the offences, he had some beliefs which condone sexual violence and appeared to have a poor attitude towards females, he had limited internal resources to cope with stress or difficult situations, he had a difficult upbringing, he appeared to have had a pattern of deviant sexual arousal. As to the latter issue, it was noted that his most recent charges were against children, though he denied having fantasies about children. It appears that he had a high libido and when intoxicated had little control over his impulses.
Dr Brett's report appeared to accept that there was no evidence that the respondent suffered from a major mental illness and clinically there was no evidence of psychopathy. The author of the report conceded that "it is also very difficult to make this assessment in an indigenous man without much more information about his place of origin and collateral information from those sources". It was noted that the respondent appeared to have had a reasonable employment ethic.
Dr Brett noted that the respondent had participated in a number of programmes to a lesser or greater degree. He appeared to have a very superficial understanding about his risk factors and future treatment goals. It was said that treatment should be targeted in "a culturally sensitive manner". This should be facilitated by someone with sound experience in cultural issues and someone who could engage with the respondent. Of concern was the respondent's motivation for change. It was noted also that the respondent had previously had problems with supervision. He had difficulty in maintaining his life within his community of origin and it was Dr Brett's understanding that he was no longer welcome back.
In the final passages of his report dealing with opinion and recommendations his opinion and recommendations were as follows:
"1.Mr Mangolamara does not suffer from a major mental illness.
2.Mr Mangolamara suffers from polysubstance abuse. He would benefit from counselling with regard to this. The aim of treatment should be abstinence from substances and not tolerance. His offending has clearly been related to substance abuse and it is a risk factor, which can be clearly addressed. He should have regular random monitoring for this, which needs to be strict and consequences need to occur if he were to have positive samples.
3.Mr Mangolamara's personality structure is consistent with that of dissocial personality disorder. He would benefit from counselling with regard to this in the context of ongoing sex offender treatment.
4.My assessment showed that Mr Mangolamara is in the high level of risk for re‑offending. The rationale for this is on historical factors as shown on the STATIC 99 and also on the risk factors, which has been highlighted in the bulk of the report under the Risk for Sexual Violence Protocol.
If Mr Mangolamara re‑offends it is likely to be in a similar pattern, ie it could be either opportunistic or predatory and with a range of victims. Of particular concern is the chronicity of the offending and the diversity of offending. It is also of concern that significant efforts have previously been made for Mr Mangolamara within his local community to try and reduce his risk, to little avail.
If Mr Mangolamara is given a Supervision Order it is essential that he have an experienced supervising officer who is assertive in management. He would need to have a clear address in the community where he would have to reside. Interventions would need to be put in place at that residence to reduce his risk. Issues that could be considered are curfew hours and confirmation that the accommodation is dry.
Mr Mangolamara appears to have a high libido (sex drive). He may benefit from a trial of anti-libidinal medication to reduce this drive. For this to occur a local General Practitioner would need to be identified who would be happy to prescribe this medication. The purpose of the medication would be to reduce his sex drive and then hopefully reduce his drive to offending.
Mr Mangolamara would also benefit from psychosocial interventions looking at his activities of daily living, including employment and recreation. He would benefit from regular employment. He appears to have a good work ethic and this would help to structure his day, without structure and stability in his life it is likely that any supervision plan would fail.
5.This opinion is based on my two clinical assessments, the collateral information as identified in the Sources of Information and assessments using two internationally accepted tools for assessment of sex offenders."
I note that, as in Dr Pascu's report, these conclusions appear to allow for the possibility of a supervision order being made. Indeed, the author of the report observes that the respondent would appear to have a good work ethic and would benefit from regular employment. It is not said unequivocally that the respondent should be characterised as a psychologically unstable or dire offender, with the result that the only way to protect the community is by the making of a continuing detention order.

Cross‑examination of Dr Brett

Dr Brett was pressed about the nature of his interviews with the respondent. He was referred to a note suggesting he spent half an hour reading the relevant evidentiary materials in preparation for his meeting with the respondent on 26 October 2006. He accepted that this was so. He acknowledged that he did not attempt to contact any elders or senior figures in the respondent's community. He had some limited contact with the North West Mental Health Services. He said that he would have made more intensive enquiries if he thought that there was a significant matter that needed verification.
Dr Brett said that he did not contact the author of any of the reports that were before him. Again, if there was information in the reports which required clarification, he would have done so. However, there did not appear to be contradictory information in the reports and it was for that reason that he did not make further enquiries.
Under cross‑examination Dr Brett agreed that it was clinically significant that the respondent displayed some awareness of the relationship between alcohol and drug abuse as a risk factor and the pattern of his offending. An acknowledgement of this kind could certainly be regarded as a first step in implementing corrective measures. However, Dr Brett was not inclined to give undue weight to this aspect of the matter because the respondent had not persevered with the relevant programmes. When pressed, he agreed that the failure to persevere was possibly linked to the transfer of the respondent to another prison facility.
Dr Brett recognised that there were certain positive factors working in favour of the respondent. He did appear to have a reasonable employment ethic and he had put forward two plans in regard to what he would do upon release which superficially were convincing. Dr Brett accepted that most offenders with adequate supervision could be managed in the community. This observation could be applied to the respondent.
However, Dr Brett was of the view that there was a need in this case for underlying issues to be addressed including the respondent's attitudes to women, society and intimate attachments. He acknowledged that a good counsellor would address these issues. It followed that he would recommend such an approach in regard to the respondent.
Under cross‑examination Dr Brett emphasised that the best predictor of future behaviour was past behaviour. When pressed about this, he acknowledged that there had been no repetition of the early homosexual offence in the respondent's background and this probably indicated that there was a reduced risk in that regard. He confirmed that he did not characterise the respondent as a paedophile.
Dr Brett was asked to say what he understood by the notion of a detention order and supervision order. As to the latter, he said that it would be like a person on parole with conditions to be complied with. He acknowledged that no infrastructure had been put in place to provide supervision in all cases of any person subject to a supervision order under the Act. In his view, there was a need for interaction between various agencies in order to create a proper framework for supervision.
Dr Brett said that he did not identify or set out any form of proposed supervision in the present case because he did not consider that it was his role to do so. He did not have regard to the various conditions or considerations mentioned in s18 of the Act concerning supervision orders because he did not see this as being his role. He did not have any direct knowledge of the circumstances at Kalumburu and was not aware whether a Corrections Officer was stationed at Kalumburu. He did not regard the respondent as being beyond rehabilitation.

Issues concerning expert evidence

It will be useful now to deal with an objection that was raised by counsel for the respondent to certain passages in the reports of Dr Pascu and Dr Brett. Put shortly, counsel submitted that in each case the author of the report had clearly placed reliance upon or given some weight to certain so‑called risk assessment tools. It was said that those tools reflected opinions about the likelihood of re‑offending but the underlying facts and matters upon which the opinions were based had not been sufficiently proved. The passages in the reports of Dr Pascu and Dr Brett concerning these tools should therefore be characterised as inadmissible or, in any event, given little or no weight.
More particularly, Dr Pascu had referred to an actuarial risk assessment tool known as Static‑99. She said that as part of the Structured Professional Judgment (SPJ) assessment she had completed the SVR‑20 (Sexual Violence Risk – 20) which was a twenty item tool with three categories including both static and dynamic factors. As part of the SPJ she had also completed the RSVP (Risk for Sexual Violence Protocol) which is an extended, newer version of the SVR‑20.
Dr Pascu said (at page 10) that in the respondent's case by using the structured clinical interview, combined with the SPJ, the Static‑99 and all collateral information available to her, she believed that he was "at high risk of re‑offending for sexual offences".
I pause here to note that in the course of cross‑examination, as I have indicated, it was brought out that the manuals, and the data upon which the manuals were based, did not form part of her reports. Moreover, the forms or sheets of paper completed by her in the course of equating the respondent's perceived traits to certain defined categories in the manuals had not been adduced in evidence.
Cross‑examination of this kind set the scene for a submission that the Court must be satisfied that the facts on which the opinion is based are proved by admissible evidence. Moreover, the evidence put before the Court must be sufficient for the Court to understand how the opinion contended for was arrived at.
A similar objection was taken to those parts of the report of Dr Brett in which he observed (at page 3) that "this risk assessment is based on the Static‑99 and the Risk for Sexual Violence Protocol. Again, Dr Brett conceded that the manuals and underlying data did not form part of his report. However, in this case, he sought to tender the Static‑99 coding form which showed, as a matter of calculation, how the respondent had been scored in relation to the categories forming part of the Static‑99 process. The Brett coding form became MFI 12 pending a ruling upon the evidentiary issue.
At the time these objections were raised the Pascu and Brett reports had actually been received in evidence and marked as exhibits. However, in the course of discussion, I conveyed to counsel that, in my view, that did not preclude an objection to admissibility being taken. I gave some weight to what was said by the Court of Appeal in R v Anderson (2000) 1 VR 1 where it was said at 25 that a trial Judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury's consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed.
This was not a trial but the Act specifically provides that the proceedings are to be regarded as criminal proceedings and the rules of evidence are to apply, subject to certain, narrowly defined exceptions. Accordingly, I consider that the approach outlined in Anderson's case (supra) should be adopted if objections are taken to opinion evidence.
Initially, I understood that counsel for the respondent was objecting to the admissibility of the Pascu and Brett reports or to those passages in the reports which purported to place reliance upon the so‑called assessment tools. However, in the course of debate, it became apparent that the common law rules of evidence had to be considered within the context of the provisions concerning evidence in the Dangerous Sexual Offenders Act.
It emerges from earlier discussion concerning Fardon's case that legislation of this kind can be characterised as protective legislation, notwithstanding that it may have the effect of depriving a person of his liberty. It emerges also from Fardon's case that the judicial function in question is linked to the crucial fact of the respondent's prior imprisonment, and thus orders of the kind sought can be regarded as an adjunct or extension of an earlier sentencing process. Accordingly, it should not necessarily be thought surprising (as this often happens in the sentencing jurisdiction) that the Court should be permitted to inform itself by various means. Hence, there are provisions in the Act which allow the Court to receive in evidence documents relevant to the antecedents or criminal record of the offender or anything relevant contained in the official transcripts of any judicial proceeding or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind. These provisions can be regarded as statutory exceptions to the common law rules of evidence.
Section 42(2) states that before the Court makes a decision or order on the hearing of an application it must, if the evidence is admissible, hear evidence called by the DPP and hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence. Section 42(3) provides that ordinary rules of evidence apply to evidence given in support of an application. However, by s 43(4) in making its decision, the Court may receive in evidence any document relevant to a person's antecedents or criminal record and anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
Importantly, s 7(3)(a) provides expressly that in deciding whether to find that a person is a serious danger to the community the Court must (emphasis added) have regard to any report that a psychiatrist prepares as required by s 37 for the hearing of the application and the extent to which the person co‑operated when the psychiatrist examined the person. Further, by s 7(3)(b) the Court must have regard to any other medical, psychiatric, psychological, or other assessment relating to the person. Section 37 deals with the preparation of a psychiatric report in which regard the psychiatrist must have regard to any report or information that the Chief Executive Officer gives to the psychiatrist under s 38(1).
By s 38(1) the Chief Executive Officer must give to each psychiatrist, for the purpose of preparing the report, any medical, psychiatric, prison, or other relevant report or information relating to the person to be examined that is in the Chief Executive Officer's possession or to which the Chief Executive Officer has, or may be given, access.
Counsel for the DPP submitted that the combined effect of these provisions was to impose a mandatory obligation upon the Court to consider psychiatric reports brought into existence pursuant to the statutory requirements (in this case the Pascu and Brett reports) and that these requirements, in the context of a hearing akin to a sentencing hearing, meant that the Court was obliged to receive the reports in evidence, notwithstanding objections of the kind raised by counsel for the respondent. In this context the objections should be regarded as matters going to the weight of the evidence.
In the end, for whatever reason, counsel for the respondent accepted that the matter should be viewed in that light, that is, that his objection went to weight only. I pressed him about this matter, so as to avoid any misunderstanding, but he was quite clear that he did not intend to press his objection to admissibility. His position was that the reports were flawed and unsatisfactory (for the reasons described in earlier discussion) but these were matters going not to admissibility but to weight. That concession having been made, after due consideration, I intend to proceed accordingly. However, as counsel for the respondent's position proceeds from the premise that reports which might be held admissible at a trial or in another statutory context should, for the same reasons, be given little or no weight in the present context, I find it necessary to recall some of the principles bearing upon a controversy of this kind.

As a general rule of evidence, witnesses must give a plain account of what they have actually perceived with their physical senses, without venturing their conclusions, beliefs or opinion about what they perceived. The opinion rule excludes opinion evidence tendered to prove the existence of a fact about the existence of which the opinion was expressed. In the law of evidence "opinion" means any inference from observed facts, and the law on the subject arises from the general rule that witnesses must speak only to that which was directly observed by them: Cross on Evidence (7th Aust ed) par 29010.
However, there are some exceptions to the opinion rule. A witness who is suitably qualified may give evidence by way of pure opinion provided the opinion is based on a sound body of specialised knowledge. However, in applying the exception concerning expert opinion, the Court must be satisfied that the facts on which the opinion is based are proved by admissible evidence. It is well known that expert opinions are often attacked on the grounds of non‑admissibility of their factual basis where this basis offends the rule against hearsay: Cross (supra) par 29140; Ramsey v Watson (1961) 108 CLR 642 at 649.
It was held in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 that the prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusion.
Heydon JA made these observations at 743:
"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness' expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must show how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the Court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight."
There are various decided cases in which a distinction is drawn between the expression of an expert opinion which is based upon non‑specific hearsay evidence drawn from textbooks and similar sources forming part of the field of specialised knowledge and specific hearsay evidence. Hearsay information of the latter kind cannot be used unless the facts upon which the opinion is based are otherwise proved by direct evidence.
For example, in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 it was held in a land valuation case that an expert, in giving an opinion on value, may base that opinion on a general knowledge, derived from hearsay evidence, of similar transactions so as to give an indication of market trends or the possible outcome of a transaction. However, where the opinion is based upon hearsay evidence of particular or specific transactions, that evidence must be proven in Court.
The Court held further that it is open to the Court to admit those parts of an expert's opinion that are not based on hearsay evidence. However, where the evidence that is sought to be admitted is so clearly intertwined with evidence that is inadmissible then the entire both of that evidence must be excluded and the discretion will not operate. An opinion which is based clearly or even mainly on inadmissible evidence is of itself inadmissible and there is no discretion to allow only the opinion.
In other words, as Ipp J observed at 377, if the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and should be excluded. On the other hand, where the expert opinion is based only partly on inadmissible testimony and that can readily be ascertained and discarded, the opinion should be admitted subject to weight.
Let me now return to the circumstances of the present case.
Put shortly, counsel for the respondent submitted that little or no weight could be given to the Pascu and Brett reports because in each case the opinion reflected in the report that there was a high risk of re‑offending was based upon or significantly influenced by assessment tools which had not been proven. This was not a case of an expert simply drawing upon specialised knowledge or non‑specific hearsay as the foundation for an opinion. The experts were drawing upon assumed facts as to patterns of behaviour in sexual offenders which had not been established by evidence. It was said, in effect, having regard to Pownall's case that an opinion which was based clearly or even mainly on inadmissible evidence was of itself inadmissible. It was not open to the Court to admit or give weight to those parts of the opinions reflected in the reports that were not based on hearsay evidence of the kind that flawed the reports.
Having described the nature of the respondent's objections to the Pascu and Brett reports, and defined the nature of the issue to be resolved concerning the weight to be given to them, I will return to this aspect of the matter later.

Evidence of Michelle Myers

Counsel for the DPP also adduced evidence from a senior Community Corrections Officer based at Hakea Prison, Michelle Myers. She said, in the course of her evidence‑in‑chief, that she received instructions concerning the matter before the Court on 13 February 2007; that is, two weeks prior to the date on which the matter was listed for hearing. She met with the respondent with a view to determining his plans in the event of being released. He referred to places to which he thought he could go. Having made some further enquiries, it emerged that specific plans had not been developed by the respondent. Further, the Department of Justice had not prepared any plans or formulated conditions that might form part of a supervision order. According to Ms Myers, her understanding was that this was not the role or responsibility of the Department. It was up to the respondent's lawyers to provide a "pre‑release plan", and only then would the Department become involved.
Ms Myers made some further enquiries as to what the position would be if the respondent returned to or remained in the Kimberleys. These enquiries included talking again to the respondent. It seemed to Ms Myers that the first and essential requirement was that a suitable address be identified. She spoke to a number of people about the possibilities in that regard in the Pilbara and in the Kimberleys. However, in the absence of a determination as to where the respondent would be residing it was not possible to arrive at any conclusion as to what services might be available in the subject area as a means of monitoring his return to the community.
Ms Myers went on to say that as far as she was aware no funding had been provided by the State for people affected by orders made pursuant to the Act. Further, no infrastructure had been put in place to facilitate the making of supervision orders, and there was no specific provision for liaison between agencies.
Under cross‑examination Ms Myers agreed that she was not aware of her department providing accommodation for persons subject to supervision orders or otherwise making arrangements in that regard. There were occasions when recently released people were referred to mentors. She said that to her the term "release plan" was a description given to a person's parole plans. Her understanding was that the Department was to be provided with a release plan by the person seeking an order as this was the system used by those seeking parole. In parole cases the offender usually puts up the plan for assessment.

The first stage

It follows from my general and further observations that I must proceed initially to the first stage of the two stage process. By s 7 of the Act, the DPP has the onus of satisfying the Court by acceptable and cogent evidence to a high degree of probability that the respondent is a serious danger to the community in that he would commit a serious sexual offence if he were released without a continuing detention order or a supervision order being made.
In addressing this issue I must have regard to the various considerations specified in s 7(3) including the reports of Dr Pascu and Dr Brett with a view to determining whether there is an unacceptable risk that the respondent would commit such an offence. This means that I must find, having regard to the prescribed considerations and the evidence before me, that there is a real risk of substance, not merely a remote possibility. The opinions expressed in the s 37 reports are not to be treated as decisive. As appears from earlier discussion, counsel for the respondent contends that in the present case, the reports in question are flawed, albeit admissible, and should be given little weight.
To my mind, having regard to what was said by Heydon JA in Makita's case (supra), the objections raised by counsel for the respondent to those parts of the subject reports concerning the so‑called assessment tools are persuasive. The assumed facts upon which the operation of the tools depend have not been established by independent evidence and in the case of Dr Pascu, the reasoning or method of computation has not been adduced in evidence.
I noted in earlier discussion that the respondent's objection goes not to admissibility but to weight, and for that reason I will admit into evidence the assessment form previously marked as MFI 12 which was used by Dr Brett. However, that is not sufficient of itself to overcome the basic objection, which is applicable to both reports, namely, that the facts and assumptions underlying the assessment tools and related manuals have not been proved.
I pause here to observe that I arrive at this conclusion in the awareness that I am required by the statutory provisions to take account of the reports. However, it is apparent from the decided cases that, in a context where the effect of the orders applied for may be to deprive a person of his liberty, the Court is obliged to proceed with circumspection in determining what weight, if any, is to be given to the reports. The reports must be subjected to careful scrutiny, having regard to the prescribed onus upon the DPP as applicant to make out its case to a high degree of probability.
In the end, bearing in mind that the rules of evidence reflect a form of wisdom based on logic and experience, I am of the view, for the reasons I have referred to, that little weight should be given to those parts of the reports concerning the assessment tools. In my view, the evidence in question does not conform to long‑established rules concerning expert evidence. The research data and methods underlying the assessment tools are assumed to be correct but this has not been established by the evidence. It has not been made clear to me whether the context for which the categories of assessment reflected in the relevant texts or manuals were devised is that of treatment and intervention or that of sentencing. Dr Pascu acknowledged under cross‑examination that the assessment tools are directed not to the commission of serious sexual offences but to sexual re‑offending of any kind (t/s 60). She acknowledged also that the database used for the mathematical model upon which Static‑99 was based related to untreated English and Canadian sex offenders released back into the community on an unsupervised basis (t/s 68).
Moreover, having regard to the admissions made under cross‑examination that the tools were not devised for and do not necessarily take account of the social circumstances of indigenous Australians in remote communities, I harbour grave reservations as to whether a person of the respondent's background can be easily fitted within the categories of appraisal presently allowed for by the assessment tools.
That finding does not dispose of the matter. I noted in earlier discussion that, as indicated by Pownall's case, it is permissible to admit those parts of an expert's opinion which are not based on hearsay evidence or not sufficiently proved. In the present case, bearing in mind that Dr Pascu and Dr Brett characterised the assessment tools as screening devices or aids which were used essentially to check the validity of their clinical assessments, I consider that it is open to me to take account of and give weight to those parts of their reports in which it appears that their opinions were formed on the basis of their clinical assessments of the respondent. However, I feel obliged to note in passing that in each case the time spent with the respondent for clinical assessment was not long.
The authors of both reports seem to accept (in which respect I take account of the written reports and what was said under cross‑examination) that the respondent does not have a major or specific mental illness. Dr Brett said (at page 6) that the respondent "does not suffer from a major mental illness". Dr Pascu put it this way in her conclusions:
"His offending is not secondary to a major psychiatric disorder but is a consequence of his higher than average sexual drive, antisocial personality and polysubstance abuse."
In addition both authors seemed to accept that the respondent cannot be characterised as a paedophile. There is a reference to deviant sexual behaviour in their evidence but this seems to be related to the variety of the victims' ages in his offending. The authors seemed to accept that the respondent was not involved in "grooming" and was not inclined to fantasies about a particular kind of victim.
When pressed, the authors of the reports were somewhat equivocal as to whether the respondent's conduct could properly be described as deviant. They seemed to fall back on the notion that he had underlying issues and was subject to adverse external circumstances. I was left with an impression from their evidence, considered as a whole, that the form of re‑offending being spoken of and the associated risk, was likely to be opportunistic rather than predatory. That view of the matter seemed to be consistent with the pattern of his previous offending.
Both authors, in different ways, seemed to echo to some extent the view expressed by Professor McSherry on behalf of the Sentencing Advisory Council, which was quoted by Callaway JA in the TSL case (supra), that there is a potential for risk assessments to be misunderstood and assigned greater accuracy by the Courts than is warranted, for the assessments tend to be taken out of their primary context, which is one of treatment and intervention.
Thus, Dr Pascu observed that providing some degree of certainty "may not be an easy task" because the risk of re‑offending is influenced by factors some of which are difficult to predict or control. She said that: "Risk assessments for a more remote future have a poor predictive ability" (page 9). I mentioned earlier that under cross‑examination she said that "remote future" meant a period beyond about five years. Dr Brett said that: "This risk assessment is based on the STATIC‑99 and the Risk for Sexual Violence Protocol. Neither of these tools has been validated within the Indigenous Australian population, however clinically they make the most sense to be used" (page 3).

Review of the evidence

It is against this background that I must proceed to an evaluation of the conclusions of the experts. Dr Pascu's opinion is based essentially upon her clinical assessment, but the weight of that opinion is diminished to some extent by the views I expressed earlier concerning the assessment tools she used to support her opinion. She said in the concluding passages of her report that having considered all the information she believes the respondent's "risk of sexual re‑offending is high"; and later "he is considered to be a high risk of committing a serious sexual offence if not subjected to a continuing detention or supervision order".
The risk is said to lie in his unaddressed offending behaviour, his increased sexual drive, his fairly unrealistic forward planning and his substance abuse. However, in the report and in her evidence at the hearing she appeared to accept that the level of risk could be reduced by a carefully formulated supervision order. She did not purport to outline the terms of such an order or the period for which it might apply.
Dr Brett's evidence was to much the same effect, although, in his case, in the concluding passages of his report, he speaks only (at par 4) of "the high level of risk for re‑offending". He does not refer expressly to the risk of serious sexual offences being committed. It is significant also (as appears from the passage in his report at page 3 that I quoted a moment ago) that he relied heavily upon the risk assessment tools the utility of which have been challenged.
Dr Brett clearly contemplated, in his report, and under cross‑examination, that many of the issues bearing upon the matters concerning level of risk, such as counselling and anti‑libidinal medication, could proceed if a supervision order were made. However, he was of the view that it was not his role to propose or formulate the terms of such an order. Like Dr Pascu, his observations about the level of risk were based on an assumption that the respondent would probably return to a rather chaotic form of communal life in the Kimberley, possibly at Wyndham or with an aunt in Kununurra, although this was not set out expressly in his report. Indeed, he noted (at page 4) that the respondent was "unable to give any specific details about either plan".
In the final analysis, I am not satisfied to a high degree of probability by the opinions expressed in these reports that there is an unacceptable risk that if the respondent were not subject to a continuing detention order he would commit a serious sexual offence. The authors do not provide an exact definition of that term, although they both said that they were familiar with the legislation. Nonetheless, I am left with an impression that in both cases they were speaking of a general risk of sexual re‑offending. Moreover, they both seemed to accept that the risk could be considerably reduced by a carefully formulated supervision order.
In the absence of any clear definition of what a suitable supervision order might be I am left with the uncomfortable thought that an offender who has served his term might be deprived of his liberty (and thereby, if Kirby J's dissenting view in Fardon's case is to be accepted, arguably be punished twice for his earlier offences), not because he has no prospect whatsoever of being released without risk to the community but simply because insufficient effort has been made by the DPP and his supporting witnesses to work out whether a suitable supervision order can be put in place.
I pause here to say that in making these observations I have no wish to embarrass or be unduly censorious about the authors of the reports. The implications of this new legislation have not been fully worked out and I can understand the apprehension of the s 37 psychiatrists concerning the nature of their role; that it might be thought they were usurping the role of the Court if they said too much about the sort of supervision orders that could be made.

Nonetheless, I am of the view that in a matter of this importance involving the liberty of the subject, an application for orders under the Act, and the evidence offered in support, must be precise. There is no room for beating about the bush. It emerges from my general and further observations that if the DPP (who bears the onus of satisfying the Court that the respondent should be deprived of his liberty) contends that the only way of removing the relevant risk is to make a continuing detention order, it will be necessary by cogent evidence to negate or rule out the possibility that a supervision order might be workable. It must be put to the Court squarely in a dire case that nothing short of a continuing detention order will do. In such a case, a Court can then be satisfied (if the evidence is sufficient) that there is an unacceptable risk unless a detention order, and no lesser form of order, is made.
On the other hand, where it is apparent to the DPP in a less than dire case, that the s 37 reports and other evidence will not be sufficiently cogent to justify such a draconian approach, because the experts may have to admit that under a suitable supervision order the risk of re‑offending will be removed or reduced to an acceptable level, it will be necessary for the DPP and the supporting witnesses to formulate with precision the minimum requirements of a workable supervision order. If that is done, then in such a case the Court can be satisfied to the required standard that there is an unacceptable risk of re‑offending unless a supervision order of the kind proposed is made.
Needless to say, in both the hypothetical cases I have posited, if a sufficient case is made out to complete the first stage of the two stage process of review, the second stage (the making of whichever form of order is thought to be suitable) is likely to fall into place quite quickly.
It follows from all of this that the Court will be left in a difficult and possibly untenable position if the case before it falls between two stools; that is, on the one hand, the circumstances of the case and supporting evidence are not strong enough to rule out the possibility of a supervision order, but, on the other hand, in the absence of precise evidence as to how the risk could be removed or reduced to an acceptable level by a supervision order, the Court cannot be satisfied that a supervision order should be made.
In such a case, the only option left to the Court might be to make no order, for the decided cases establish that the powers allowed to the Court to make orders bearing upon the liberty of the subject pursuant to this legislation must be regarded as exceptional. If the requirements of the Act as to burden of proof and evidence are not rigorously observed by the DPP as the applicant for orders curtailing the liberty of the subject, then the power to make an order should not be exercised.
I cannot see that it is sufficient for the applicant to simply "leave it to the court" to work out something suitable by way of a supervision order (as can often happen in the course of sentencing) because the safeguards written into the Act, including the onus placed upon the applicant to meet a carefully prescribed standard of proof, clearly show that it is for the applicant to justify the particular outcome he contends for. To my mind it would be an abrogation of the judicial process in this context, which presumes impartiality, for the Court, in effect, to join with the applicant in working out the terms of an order which may lead to the respondent being treated as a prisoner in all but name, especially where the respondent contends that no order should be made and requires the Court to make a ruling.
My review of the s 37 reports and the other evidence in the present case leads me to believe that this is a case of the latter kind, namely, a case that has fallen between two stools. It is apparent from the form of the orders sought that the applicant has simply put up the two forms of order as alternatives, and left it to the Court to work out what should be done, but without fully appreciating the impact that this approach has upon the matters to be determined by the Court.
On the one hand, as appears from my earlier observations, the s 37 reports are not sufficiently cogent to satisfy me that this is a dire case in which there is a risk of re‑offending at the relevant level and the only way it can be removed or sufficiently reduced is by making a continuing detention order. This is because certain imperfections in the reports have been exposed. More importantly, in various ways, the authors of the reports appear to accept that the level of risk could be reduced, possibly to an acceptable level, by a carefully constructed supervision order that allowed for counselling and treatment. The problem is that I have no clear evidence before me as to precisely what form of order might be sufficient to remove or reduce the risk. Thus, it becomes difficult to conclude or be satisfied that there is an unacceptable risk.
Put shortly, the application for a detention order is flawed because the applicant, who bears the onus of proof, has not persuasively negated or ruled out the possibility of a suitable supervision order being made.
I am conscious, of course, in making these observations, that there may be a certain kind of case in which the nature of the offending is not sufficiently dire to justify the making of a continuing detention order. In such a case the tenor of the expert opinion might well favour rehabilitation in the community via a supervision order. But what is to be done in such a case, if owing to the recalcitrance of the offender, or a complete absence of family ties or supportive agencies in the relevant community, it proves simply impossible, notwithstanding the most conscientious efforts of the DPP and those instructing him, to formulate a suitable supervision order?
In such a case, it would be consistent with what I have said for the applicant to endeavour to persuade the Court that, if the risk of re‑offending at the relevant level is found to exist, the Court is obliged to make a continuing detention order. In other words, in that situation, the notion of making a supervision order as a means of averting the unacceptable risk that would otherwise exist is negated or ruled out by evidence of the offender’s recalcitrance or other circumstances whereby a supervision order simply cannot be made.
There are indications in the evidence before me that the present case might arguably be said to be close to the hypothetical case I have just described. For example, both reports speak of the difficulty in ascertaining from the respondent what his plans are and where he will live. There is evidence before me that the first step in formulating a workable supervision order is fixing upon an address so that support from family and agencies can be structured accordingly. As it happens, all of these matters remain uncertain.
However, the problem is that the case before me has not been argued in that way. The s 37 reports touch upon the difficulty of formulating a supervision order in the circumstances of this case, especially in the case of a man who has few family ties and who has moved through various communities, not always happily. Nonetheless, the fact remains that both Dr Pascu and Dr Brett readily admit (probably due to a degree of uncertainty as to how the Act works and the extent of their role) that they did not attempt to work out what might be achieved by a supervision order, or formulate the precise terms of such an order. The Act requires that a supervision order be for a defined period but no period has been prescribed. There are references to anti‑libidinal medication but no course of treatment has been outlined.
For whatever reason, I do not have evidence before me that a conscientious attempt has been made either to rule out the possibility of a supervision order (so as to establish that detention is the only way in which the risk can be removed) or, on the other hand, to formulate the terms of a suitable supervision order. Further, counsel for the respondent has been adamant in his stance that no order of any kind should be made, due to the alleged insufficiency of the evidence relied upon by the applicant, with the result, upon my reading of the legislation, that it is not open to me to endeavour to join with the parties in settling the terms of a suitable supervision order by consent. It follows that a ruling must be made upon the basis of the evidence actually before the Court.
This brings me to the remaining considerations to which the Court must have regard pursuant to s 7(3) of the Act and to the balance of the evidence. As I indicated in earlier discussion, the s 37 reports and any strengths or imperfections in them, must not be treated as decisive. In dealing with the first stage of the two stage process the Court is required to arrive at certain findings having regard to all the prescribed considerations.
However, as I proceed to review the relevant considerations commencing at s 7(3)(b) (any other medical, psychiatric, psychological, or other assessment relating to the person) and moving through to s 7(3)(j) (any other relevant matter), I find that, to my mind, the evidence bearing upon the matters in question, and the applicant’s case as a whole, is coloured by the analysis I have just set out; that is, it cannot be said persuasively that there is an unacceptable risk of re‑offending at the relevant level unless the possibility of a supervision order be ruled out (so as to justify the making of a detention order) or the terms of a supervision order be defined (so that the Court can determine whether the terms are sufficient to remove or reduce the risk to an acceptable level).
The other reports before me and the previous sentencing remarks allow for and proceed from the premise that there will be at least a prospect of rehabilitation. In dealing with considerations such as propensity and pattern of offending, the related documentation, like the s 37 reports, presumes that the respondent's problems can be addressed. There is evidence before me that the respondent has participated to some extent in rehabilitation programs. To some extent, he has acknowledged that external factors such as substance abuse have contributed to or brought about his misconduct. However, it does not emerge clearly from any of these evidentiary materials that there is no prospect of a suitable supervision order being made. This means that, inevitably, the Court must be satisfied that the only way that an unacceptable risk of re-offending to the required level can be removed or reduced to an acceptable level is by the making of a detention order. To my mind, the evidence is not sufficiently cogent to warrant the making of such an order.
It follows from all of this that, in my opinion, in cases of this kind in the future the applicant will have to define its case and the orders contended for with far greater precision, and review the supporting evidence accordingly. This should not be regarded as a burden because the Act itself indicates that steps of this kind must be taken with a view to ensuring that the liberty of a person who has served his term is not removed or diminished unnecessarily. The Courts have often recognised that in order to ensure that fundamental rules of fairness are generally upheld it may happen that the evidence before the Court is insufficient to convict a litigant in a particular case or to impose a severe sentence.

Summary

This newly enacted legislation, the Dangerous Sexual Offenders Act, provides for the DPP to apply for and obtain orders concerning an offender convicted of sexual offences who is found by the Court to be a serious danger to the community, notwithstanding that the offender is about to complete or has completed a sentence of imprisonment previously imposed upon him. The DPP can apply for a continuing detention order or a supervision order, although in the latter case, the supervision order must be for a specified period.
The safeguards built into the legislation recognise that a measure designed to ensure the better protection of society could become an instrument to weaken a basic principle of individual liberty whereby a person is not to be detained in custody or subjected to restrictive orders without good cause. For that reason the DPP has the onus of satisfying the Court to a high degree of probability that the prescribed statutory criteria apply and an order should be made. Moreover, the statutory provisions and a number of previously decided cases establish that, in assessing the risk of re‑offending, a Court should not make a continuing detention order without considering whether an adequate degree of protection of the community can be obtained by the making of a supervision order.
It follows from this view of the matter that an application made by the DPP should not be treated as analogous to an application made by an offender for a community order or for parole in which the offender must satisfy the Court that he is fit to be released. An approach of that kind would have the effect of reversing the onus of proof. It is for the DPP to satisfy the Court that restrictive orders are necessary after the offender would otherwise have been released due to the completion of his fixed term of imprisonment. Courts are conscious that imprisonment is not usually used as punishment in advance for crimes feared, anticipated or predicted. Further, in a case of this kind there is clearly a risk that a continuing detention order might be perceived as a further or double round of punishment for the original offence.
In my opinion, it follows from this view of the matter also that it is not sufficient, as in the present case, for the DPP simply to apply for a continuing detention order or a supervision order, and leave it to the Court to come up with various terms and conditions if the latter is thought to be appropriate. An approach of that kind would leave the Court in the untenable position of assisting the applicant to make out its case, for a Court is always required to act impartially, and, in this context, must be vigilant to ensure that basic principles of freedom are not being eroded.
If the DPP as applicant characterises the case as a dire case in which the only means of protecting the community is by the making of a continuing detention order so that the offender is cut off from the community, then it must present cogent evidence to that effect to a high degree of probability. This means that the DPP must negative or rule out the possibility that a supervision order with terms and conditions of the kind envisaged by the Act would be sufficient to protect the community. An onus of this kind is a familiar concept in criminal proceedings, and, by s 40 of the Act, these are said to be criminal proceedings.
On the other hand, if the evidence relied upon by the DPP as applicant appears to allow for the possibility that a supervision order might be sufficient to remove the risk to the community relied upon, then the DPP must provide evidence as to what would be a suitable supervision order and address the criteria concerning such an order specified in s 18 of the Act. Previously decided cases indicate that in a context where the liberty of the subject is at stake it is not enough for the applicant to press for continuing detention as the line of least resistance. Undue or protracted incarceration of a person who has served his term because administrative or rehabilitation measures do not exist, or have not yet been finalised, is not a sufficient justification for ongoing incarceration. The Act is intended by its terms to allow for continued detention only for as long as the unacceptable risk to the community clearly exists.
I note in passing that if it is not possible for the DPP and those instructing him to formulate an appropriate supervision order, owing to a lack of co‑operation by the offender, or due to the unusual nature of the offender's personal circumstances, then, in certain cases, this might be enough to justify the making of a continuing detention order, bearing in mind that under the Act such an order is subject to periodical review.
In the present case, I am of the view that the DPP as applicant has failed to discharge the onus upon him of satisfying the Court to a high degree of probability (having regard to the considerations prescribed by s 7(3) of the Act) that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence.
This is because the s 37 reports and other evidence presented to the Court are not sufficiently compelling to establish that this is a dire case in which the risk can be averted only by the making of a detention order; or, putting it another way, that this is a case in which the possibility of making a supervision order must be ruled out.
Further, because there is an absence of cogent evidence as to whether the risk could be removed or reduced to an acceptable level by the making of a supervision order, the applicant has failed to establish that there is an unacceptable risk of re‑offending at the relevant level if the respondent were to be released without being subject to a supervision order.
It is apparent from the evidence that it was not until mid‑February 2007, shortly before the hearing, and long after the respondent's original term had expired, that an attempt was made by those supporting the present application to work out what could be done by way of a supervision order.
In the end, possibly due to the lateness of the endeavour, and a degree of uncertainty as to where the responsibility lay with respect to formulating such an order, the Court was presented with no clear or compelling evidence as to what, if anything, could be achieved by way of a supervision order, or whether, having regard to the respondent's personal circumstances, it was simply not possible to make such an order. On the contrary, the applicant's evidence and the nature of the orders sought appeared to contemplate that after careful consideration a supervision order could be made.
As I have indicated, the decided cases show that in a case such as this, involving the liberty of the subject, the power allowed to the Court to make orders of the kind sought should not be exercised unless the applicant has discharged the onus upon it and the statutory safeguards are strictly observed.
In this case, the DPP and those instructing him seem to have proceeded on the assumption that, as in the case of an offender who is eligible for parole, it is for the offender to make out a convincing case as to why a supervision order should be made, if such an order might be sufficient to remove or ameliorate the risk of re‑offending. To my mind, for the reasons mentioned earlier, such an approach is not warranted by the legislation, and has the effect of reversing the onus of proof.
It follows that as the statutory requirements concerning the evaluation of the risk of re‑offending to the required level have not been established to the prescribed standard of satisfaction by the evidence, no order will be made. This means that as the respondent has now served his prior fixed term of imprisonment there appears to be no basis upon which he can continue to be held in custody, subject only to the operation of any other lawful warrant. I will hear from counsel as to the nature of any orders or directions to be made.